The International Criminal Court is hurting Africa

Britain's support for the International Criminal Court is wrong and undermines
its credibility in African countries, writes Courtenay Griffiths.

Uhuru Muigai Kenyatta and William Samoei RutoPhoto: AP

By Courtenay Griffiths, QC

3:20PM BST 03 Jul 2012

Imagine the British Government appointed as minister for Africa a man close friends with a mercenary who attempted to overthrow an African President. Imagine this same minister was fully supportive of an international court that, during its nine-year history, had only prosecuted black Africans. Imagine that this court’s most high-profile case, against the deputy prime minister of Kenya, had been based solely on evidence from a single witness chosen by associates of his political opponent, the favourite of the British Government.

This is not a Frederick Forsyth novel, but the dangerous reality of Britain’s foreign policy towards Kenya. Henry Bellingham, our Minister for Africa, is a close friend of Simon Mann, the mercenary who tried and failed to orchestrate a coup in Equatorial Guinea. Mr Bellingham has publicly supported the work of the International Criminal Court that has so far only tried black Africans, when, from Libya to Syria, there are many more victims who still await justice.

But as I learnt during my time as chief defence counsel to Charles Taylor, the requirement of international justice is not the raison d’etre of the International Criminal Court at all. Instead, the court acts as a vehicle for its primarily European funders, of which the UK is one of the largest, to exert their power and influence, particularly in Africa.

Some would argue it is reasonable for countries to exercise their power in foreign countries through legal means. If this is the case, it is surely sensible to support both the institutions and legal cases that might realise this goal. However, Britain’s support for the ICC, and in particular our country’s funding of the Kenya case, is seriously undermining its credibility and influence in Africa.

The case against Uhuru Kenyatta, the deputy prime minister of Kenya, is of serious concern, not only because of the serious lack of evidence against him, but also because of the methods used to obtain this evidence. The ICC did not directly source witnesses for this case, nor has it done so in any other case heard before the court. Instead it outsourced evidence-gathering to local intermediaries. In the Kenya case, these intermediaries happened to be well known associates of Raila Odinga, the current prime minister of Kenya, and Mr Kenyatta’s long-term political opponent.

This case, which revolves around a single witness sourced by those close to Mr Odinga, should set off alarm bells in the Foreign Office. Instead, the FCO has funded the witness protection scheme for the case and given its full support for the trial to proceed.

Britain does not want Mr Kenyatta to be President of Kenya. It sees its interests as best served through the election of Mr Odinga in the forthcoming contest, a peculiar position given Odinga’s former support for East Germany and Cuba (his son is named Fidel Castro Odinga). The Western-educated Kenyatta appears a more obvious choice, had the British not been involved in the incarceration of his father.

Jomo Kenyatta, the first president of Kenya, was imprisoned by the colonial administration on charges of facilitating the Mau Mau rebellion against British rule. He was later released from prison following the discovery that his trial witnesses were from sources loyal to the British government.

Fifty years after Kenyan independence from Britain, history is repeating itself. Uhuru Kenyatta is considered likely to win the presidential election scheduled for 2013, not Britain’s man Odinga.

For Britain to maintain its influence in Kenya and therefore in Africa it needs to withdraw its support and funding of the Kenyatta case. The FCO can retreat with its honour still intact, while maintaining its support for international justice by calling for a review of the Kenya case – even for its end – if politically unbiased evidence does not materialise.

Britain should encourage other countries that fund the ICC to pay for the witness protection scheme in its place. The parallels between the Jomo and Uhuru Kenyatta cases of funding politically biased witnesses are all too obvious. And Britain should make its impartiality towards the forthcoming Kenyan election explicit. This means inviting all credible Presidential candidates to the UK for discussions with officials at the FCO, not only Odinga, as has been the case for far too long.

It may be possible for Britain to maintain its support for the ICC, despite the criticism that it is a means to exert power for its funders rather than to deliver international justice. But while Britain continues to undermine Kenya’s national sovereignty through intervening in its political sphere this will remain unlikely. There, as with other African countries, it is for their citizens to decide who rules them, not any foreign power. And Britain would do well to remember this; Uhuru in the Swahili language means “freedom”. If Kenyatta wins the election this may mean that Kenya finally frees itself 50 years after independence from the influence or obligation to its former colonial master.

Courtenay Griffiths QC is a leading international expert in criminal law who acted as Chief Counsel to former Liberian President Charles Taylor at the Special Court for Sierra Leone